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Perspective
Volume XI, Number 1 (September - October 2000)

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AFTER KOSOVO AND CHECHNYA
By SERGEI KOVALEV

The crisis in Kosovo and the military approach to its resolution posed certain problems for the international community. The issues were hardly new; rather, long-standing unresolved questions presented themselves in a way that required immediate attention. However, the response has generated further problems. Russia's human rights abuses in Chechnya and the feeble response of the international community have exposed the flaws in the new international system.

1. After Kosovo, it became clear that the concept of "state sovereignty" would have to undergo changes. For instance, mass and gross violations of human rights by a government on its own territory may no longer be considered as simply the internal affair of that state. Such limitations on state sovereignty are not new; they were expressed in the Nuremberg Tribunal. However, on that occasion crimes against humanity became the subject of the tribunal's work only after the Nazi state had been destroyed. The casus belli of World War II was the aggression against other states perpetrated by Germany and her allies not the barbarous internal policies of the Nazi regime. The Yugoslav crisis represents the first time in contemporary history that a group of states demanded that another state alter its internal policies and went to war when those demands were not met.(1)

2. Today there are no clear legal standards according to which a situation which may require intervention can be appraised. NATO's actions, although considered moral, were not grounded on any legal foundation. The absence of clear legal criteria for intervention sets a dangerous precedent. For instance, tomorrow Russia may decide that moral imperatives require it to intervene on behalf of the Russian-speaking population of Latvia. How would the international community respond?

3. Currently, we lack objective institutions, global or regional, which could consider a crisis like Kosovo, then render and execute decisions. The Security Council has demonstrated a total ineptness with regard to decisionmaking in such situations. Other UN organs, like the General Assembly, cannot be regarded as quasi-judicial organs, which this kind of judgment requires, since they lack the two main characteristics of a court: objectivity and impartiality. Delegates to the assembly represent their governments; the UN is no more than a forum for international diplomacy. As such it is very useful now and will remain so in the future, but it cannot serve as a judicial agency. In the Balkans, NATO had to create legal norms, adopt decisions based on those norms, and execute the decisions. This constitutes a dangerous, revolutionary precedent. Few leaders of NATO countries and the public at large are likely to be comfortable with this situation.

4. Ethnic conflicts clearly lead to bloodshed and oppression. Such conflicts often arise from movements for "national self-determination," a notion that is included in several international documents. At the same time there is no universally accepted interpretation of this right neither a hierarchy describing how it relates to other principles of international law, nor a mechanism for its implementation. The subject of the right in other words, exactly who may exercise self-determination is also entirely unclear. The confusion regarding this right has lasted for nearly a century and has produced rivers of blood. If the confusion continues, the rivers will flow into oceans.

5. Finally, there is a question as old as creation, but still highly pertinent: Should military force be used for the purpose of restoring peace and justice? Indeed, an initial response might point to a police officer's ability to use force against a criminal, and draw a parallel to efforts to neutralize an international criminal such as Slobodan Milosevic. However, the moral parallel is incomplete. The policeman acts against the criminal; the war was not aimed at Mr. Milosevic, but at the peaceful inhabitants of Serbia and Montenegro.

In my view the main paradox of the Balkan crisis consists of the fact that the obvious need to resolve the crisis collided with the equally obvious impossibility of doing so within the framework of the existing world order. The situation required a fundamental change in the international system, including major changes in international law, independent international courts and an international executive to carry out the decision of the court. This executive would possess military might greater than any individual country or group of countries.

To evaluate the results of the war over Kosovo, I would pose the following questions:

* Will the Kosovo crisis serve as a real push toward a fundamental restructuring of international relations on a new globalist basis?

* Will Kosovo remain a multi-ethnic territory, capable of self-government within a democratic Yugoslavia?

These criteria are related. If the peacekeepers are not able to curb the terror of the KLA, pogroms against gypsies, and evictions of the Serb population, doesn't that suggest that there is something wrong with the concept of humanitarian intervention? In the final analysis, this suggests a serious weakness in the foundation of plans for European and global integration. If today a united Europe can't cope with the mines of Serbian and Albanian nationalism, is it safe to suppose that there aren't other potentially explosive situations under the very pillars of the united Europe?

The Kosovo operation brought mixed results. Of course putting a stop to mass killings in Europe is a great gain. However, the mass exodus of Albanians was replaced by an equally massive flight of Serbs, gypsies and other minorities. The region became homogenous. This is a serious setback.

During the Kosovo operation the overwhelming majority of countries regarded the need to stop gross human rights violations of the Milosevic government as by far more important than holding to the old principle of "non-interference in domestic affairs." Yet the international community had not found an appropriate legal basis for its decisions concerning Kosovo. As a result, the military intervention occurred outside any sort of legal parameters. This is deeply troubling, because after Kosovo, the world has become more dangerous and unstable. It's not an accident that Russian generals refer to NATO actions in Yugoslavia to justify a poorly conceived and irresponsible military expansion in Chechnya. Of course, those references to Kosovo are hypocritical; unlike NATO's intervention, the Russian operation in Chechnya is being carried out for imperial purposes. However, at least in the first phases, the propagandistic justification for the war in Chechnya was found in the very real human rights abuses in Chechnya.

Although it is impossible to reconcile oneself with what is happening in Chechnya now, one has to admit that it reflects the Kosovo scenario only less civilized. (I am not referring to the motives of the participants but the logic of the unfolding events.) The inter-war Chechnya had become a "black hole" where hundreds of people disappeared, a hostage trade blossomed (in which hostages faced possibly losing fingers and even heads), and public executions and corporal punishment were known to happen. It's true that the Dagestan region of the Russian Federation was attacked from Chechnya. I am deliberately not mentioning the explosions in apartment buildings in Russia proper, since too many unanswered questions remain about those events and it is not clear that they will be resolved through legal means. With the help of the mass media, the idea of retribution was planted in the hearts and minds of most Russians, an idea that has been realized in the form of a war of annihilation in which the death toll continues to mount, including thousands of peaceful residents, women, children, old people.

This is the second time in five years that Russia is fighting a war in the North Caucasus. I said then, and I am repeating now: The responsibility for bloodshed of the 1994-1996 lies not only with Yel'tsin and Dudaev but also with the leaders of the major Western powers, who could have spoken up to put an end to the war, but did not.

Moreover, the same Western powers decided to put the NATO sword to the Balkan knot. The number of innocent victims of the operation against Serbia, and the number of innocent victims in and around Chechnya are incomparable but since when do we count people by the head, as though they were cattle? When they made the decision to intervene in Serbia, NATO countries put human rights ahead of national interests clearly there was nothing to gain in this Godforsaken corner of the Balkans. Quite the opposite: They only created problems for themselves.

The intention to bring Milosevic to justice is a positive development. But there is no court that will consider the mass and gross violations of human rights committed by the Chinese government. If there is law, it has to be applied equally to all parties.

Only the rapid development of a functional legal mechanism for international resolution of internal conflicts could have justified the war in Yugoslavia (or the first Chechen war). A year has passed, the guerrilla phase of the second Chechen war is well underway, and neither Russia nor the West has even hinted at the establishment of such arrangements. This means that neither Russia nor Europe has learned a thing.

In the absence of new mechanisms, we must use the ones we have. The decision by the Parliamentary Assembly of the Council of Europe (PACE) to initiate proceedings to exclude Russia from the CE and the decision to suspend the Russian delegation to the CE were correct steps and were in accord with the charter. But these are not the only available measures and may not be the most effective ones. Moreover, such steps can be seen as separating Russia from Europe, while all of us need precisely the opposite. We must link ourselves with mutually binding agreements, and not allow any party to depart from existing commitments, whatever the difficulties.

Why don't the Council of Europe members utilize the international judicial mechanism they have at their disposal? Why not initiate a suit through the Strasbourg Court on Human Rights so that Europe and Russia could investigate the human rights abuses and violations of the humanitarian rules of war in Chechnya through an open court procedure? All this requires is the political will of one European state. If the Russian authorities are sure that they are in the right, they should welcome a legal inquiry of this type!

I hope that a resolute and constructive position by European countries with regard to Russia will serve not only as a stimulus to end the barbarism in the North Caucasus but also as a basis for further cooperation in the future.

The world after Kosovo knows that it is standing at a crossroad. In the framework of traditional politics, it cannot make a decision, not even the wrong decision. We cannot wait for professional politicians to take the lead. Only very powerful social pressure can make them budge. That, in turn, requires a profound shift in public consciousness, which calls for tremendous effort.

This is long and difficult work, which will need the coordinated efforts of many. But it is not impossible and I still have hope that the long journey will be crowned with success.



Notes:

1. I am focusing here on democratic states: The occupation of Czechoslovakia by the Warsaw Pact states in 1968 belongs to a completely different category.
Copyright ISCIP 2000
Unless otherwise indicated, all articles appearing in this journal have been commissioned especially
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